Winter v. Unaitis

• Decision Date: 06 October 1964
• Docket Number: No. 1182,1182
• Citation: 204 A.2d 115,124 Vt. 249
• Parties: Harold WINTER and Georgia Winter, b/n/f Harold Winter, v. John UNAITIS and Marjorie T. Unaitis.
• Court: Vermont Supreme Court

Page 115

204 A.2d 115

124 Vt. 249

Harold WINTER and Georgia Winter, b/n/f Harold Winter, v. John UNAITIS and Marjorie T. Unaitis.

No. 1182.

Supreme Court of Vermont.

Oct. 6, 1964.

Robert H. Gibson and John A. Rocray, Brattleboro, for plaintiffs.

Fitts & Olson, Brattleboro, for defendants.

Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and SYLVESTER, JJ.

SYLVESTER, Justice.

This is a civil action for the alleged negligence of the defendants in failing to maintain premises claimed to be under their control in a reasonably safe condition, as result of which the plaintiffs suffered injury. Trial was by jury, resulting in a verdict and judgment for the defendants. The case is here on plaintiffs' exceptions to the court's failure to the charge as requested, on their exceptions to the charge as given, and on the court's denial of defendants' motion for a directed verdict.

We will first direct our attention to defendants' exception to the court's denial of their motion for a directed verdict made at the close of all the evidence. If this motion should have been granted, any errors in the charge as given, or failure to charge as requested, to which the plaintiffs have excepted, were harmless. Krulee v. F. C. Huyck & Sons, 121 Vt. 299, 302, 156 A.2d 74; Russell v. Pilger, 113 Vt. 537, 544, 37 A.2d 403; La Mountain's Admx. v. Rutland R. R., 93 Vt. 21, 26, 106 A. 517. Taking the evidence in the light most favorable to the plaintiffs, as it must be in determining whether error was committed in failing to grant defendants' motion for a directed verdict, the jury could have reasonably found the following facts.

The defendants own and operate a farm in the Town of Vermon, Vermont. During the fall of 1960, the defendant, John Unaitis, employed the plaintiff, Harold Winter, to work for him as a farm hand. As a part of Winter's wage, defendants gave him and his family the use of one of the tenements in a two-tenement house owned by them and located on their farm property. The remaining tenement in this same house was occupied by one Jesse Moffitt and his family. Moffitt was also employed by the defendant, and was a relative of the plaintiffs. Other tenants and hired help of the defendants had occupied the Winter tenement during the three year period prior to plaintiffs' occupancy thereof.

Attached to the rear of this two-tenement house was an entry-way and a large shed, used by the Winter and the Moffitt families as a passageway of their tenements, and also for storage of firewood used by them. This shed was also used as a storage place by the defendants, and served as a play area for plaintiff's children, the Moffitt children and those of the defendants. Within this common shed area was stored a stove, two used refrigerators, a nail keg containing nails, staples, bolts, mowing machine fingers, and about the area was a scythe and other small farm items, some belonging to the defendants.

Sometime during the spring of 1962, while the plaintiff's, Moffits' and defendants' children were playing in this shed in question, Philip Unaitis, a 16-year old son of the defendants, found several small cylindrical objects on a shelf inside the door of the shed. Upon discovering that these objects made good whistles, Philip distributed them to his playmates, one of which came into the possession of the plaintiff Georgia Winter, 11 years old. Georgia retained this object in her handbag for approximately a month, using it occasionally as a whistle.

On May 21, 1962, while attending school, and while sitting in her classroom, Georgia removed the small, cylindrical object from her pocketbook and undertook to pick it with a small safety pin. The outcome of this investigative couriosity on the part of Georgia resulted in a loud explosion, the loss of an eye, two fingers, a part of a third finger, and permanent scars about the head, face and arms. This cylindical object was an explosive commonly known as a blasting cap.

Defendants motion for a directed verdict was, in substance, that plaintiffs had failed to introduce any evidence of actionable negligence on part of the defendants in the care and maintenance of the premises in question; that the plaintiffs had failed to establish that any negligence of the defendants was the proximate cause of the plaintiff's injuries; that the plaintiffs ahd failed to prove that the defendants knew, or ought to have known, in the exercise of reasonable care of the existence of the blasting caps in the area in question, and that the plaintiffs were guilty of contributory negligence as a matter of law. We will first take up that portion of the motion having to do with defendants' negligence.

In considering this ground of the motion, we must, as has been repeatedly held, take the evidence in the light most favorable to the plaintiffs. The tendency of the evidence and not its weight, is to be considered; the question is not merely whether there is any evidence to this effect, but whether it is of such a quality and character as to justify a jury acting reasonably, to predicate a verdict thereon in favor of the party having the burden of proof. Peterson v. Post, 119 Vt. 445, 451, 128 A.2d 668. Evidence which merely makes it possible for the fact in issue to be as alleged, or which reaises a mere conjecture, surmise or suspicion, is an insufficient foundation for a verdict. Lewis v. Vermont Gas Corp., 121 Vt. 168, 179, 151 A.2d 297; Perkins v. Vermont Hydro-Electric Corp., 106 Vt. 367, 399, 177 A. 631. The form of expression used in some of our cases is that there must be substantial evidence fairly and reasonably tending to support the plaintiffs' claim to make a case for the jury. Lewis v. Vermont Gas Corp., supra, and cases there cited.

The plaintiffs recognize and set forth in their brief that to recover they must sustain their proof on three elements, as they refer to them, i. e., 1) That the defendants had retained control of the shed in question so as to impose upon the defendants the duty of maintaining this shed in a reasonably ably safe condition; 2) That the defendants in the exercise of their control of this shed were negligent in the manner in which they exercised this control; 3) That such negligence on the part of the defendants constituted a proximate cause of the injuries suffered by the plaintiff Georgia. Plaintiffs' brief is devoted mostly to argument and citations having to do with element number 1 concerning control of the shed in question, to the charge of the court as given and to the court's refusal to charge their many requests. Little is said of the claimed negligence on part of the defendants.

We conclude, however, from plaintiffs' oral argument and from their brief that the negligence upon which they seek to charge the defendants was the storage in the shed in question, of a stove, two refrigerators, a nail keg containing nails, staples, bolts and similar items, including a scythe, the failure to remove these items upon request to do so by Mrs. Winter, and failure to exercise the necessary care and diligence to have discovered the cylindrical objects, if found to be on the premises, and to have removed them therefrom.

We have made a careful examination of the record and find no evidence, and none has been pointed out to us, indicating when the explosive caps first appeared in the shed, who may have placed them there, how long they had remained in the shed when found by the boy Philip, or any evidence that the caps were ever in the possession of the defendants or that the defendants knew anything of an explosive nature was about the shed. True, Mrs. Winter requested the defendant John Unaitis to move the stove and refrigerators, and especifally the refrigerators, because of the children, and other things because they were no good, were in the way, and their removal would afford more room for the storage of firewood. There is no direct evidence or evidence from which it can be inferred that the reason she requested the defendant John to remove the stove, refrigerators and other things was because any of the articles were imminently dangerous to life or because of the explosive, dangerous character of the articles. Again, there is no evidence, even by inference, that the situation of the shed at any time, was such as to suggest an investigation or inspection of it and its content, or that a peril had been created by the storage of explosives. In Humphrey v. Twin State Gas & Elect. Co., 100 Vt. 414, 422, 139 A. 440, 444, 56 A.L.R. 1011, the opinion states:

'[t]he existence of actionable negligence depends, not upon what actually happened, but upon what reasonably might have been expected to happen. Unless it be shown that a prudent man, situated as the defendant was at the time of his alleged default, knowing what he knew or should have known, would have regarded injury to the plaintiff or to one of the class to which he belonged as likely to result from the act or omission complained of, actionable negligence is not made out.'

Actionable negligence is made out only when it appears that a prudent person, in like circumstance, would have thought that injury would be likely to result from his acts or omissions. Johnson v. Cone et al., 112 Vt. 459, 462, 28 A.2d 384. See Hannon v. Myrick, 118 Vt. 428, 432, 111 A.2d 729, and cases cited therein.

Plaintiffs in their supplemental brief, rely heavily on the case of McGettigan et al. v. National Bank of Washington et al., 320 F.2d 703 (1963), a District of Columbia Circuit Court case. The factual situation in this case, however, is entirely different from that in the case before us. In that case the defendants were responsible for the care of a building that had been allowed to seriously deteriorate. Doors had disappeared, windows were out and the glass broken. The structure was open to the elements and was a hangout for persons of questionable occupations and habits. The interior was cluttered with debris and the roof was...